Research › Browse › Judgment

Kerala High Court · body

1993 DIGILAW 167 (KER)

A. Manual v. Inspector-General of Registrations

1993-03-18

SHAMSUDDIN

body1993
Judgment :- Shamsuddin, J. The petitioner and seven others including a company under the name and style of "Manuelsons Hotels Private Ltd.' formed a partnership concern under the name "Manuelsons Hotels' on 30-6-1985. The partners agreed to dissolve the firm with effect from 27-3-1987. The petitioner and seven others executed a deed of dissolution of partnership. The partners agreed that the entire business together with the assets and liabilities of the firm to be allotted to. the eighth partner i.e. the company, Manuelsons Hotels Private Ltd. The deed was executed on stamp papers valued at Rs.200/-. Ext.P1 is the document dated 27-3-1987. This was presented for registration before the Sub Registrar, Kozhikode. Sub Registrar instead of registering the same, impounded the document and forwarded to the District Registrar (General), Kozhikode exercising powers of Collector on 30-3-1987. However the Sub Registrar demanded and collected a sum of Rs.46,984/- as registration fee when the document was presented before him. According to the Sub Registrar the document presented was a conveyance for Rs.46.92,647.64 requiring a stamp duty of Rs.3,51,952, 50 and a dissolution of partnership requiring a stamp duty of Rs.100 - under Act 43(8) of the Kerala Stamp Act. He referred the matter to the District Registrar who also concurred with the Sub Registrar. It was further referred to the Inspector General of Registration, the first respondent herein who took the view that document is only a dissolution of partnership. The Board of Revenue to which also reference was made agreed with the view taken by the first respondent. Ext.P2 is the final order passed by the Board of Revenue on 25-3-1988. 2. as excess amount was collected from the petitioneron 27-5-1988 itself petitioner applied to the Inspector General of Registration seeking refund of Rs.46,984/- collected from the petitioner as registration fee on 27-3-1987 stating that the document is a conveyance. Ext.P3 is the said application. The first respondent appears to have rejected the request purporting to be under R.207 of the Registration Rules and this was informed to the petitioner by the Sub Registrar. Ext.P4 is the said communication. The petitioner has challenged the order passed by the first respondent which was communicated to Him through Ext.P4. 3. Rule 207 of the Registration Rules (Kerala) which is framed in exercise of the powers conferred by sub-sec. Ext.P4 is the said communication. The petitioner has challenged the order passed by the first respondent which was communicated to Him through Ext.P4. 3. Rule 207 of the Registration Rules (Kerala) which is framed in exercise of the powers conferred by sub-sec. (1) of S.69 of the Registration Act reads as follows: "It is for the Registering Officer, who js responsible for levying the fee, to determine in the first instance what fee should be paid. After it has been paid the presenting part may, if he is dissatisfied, apply to the Inspector General of Registration who shall if he thinks there has been and overcharge order the Sub Registrar to refund any excess. The Inspector General shall not take any notice of any such application, if presented after six months from the date of the levy of fees or fine." In this original petition it is contended that the rule, is arbitrary, and confiscatory in nature and also inoperative and unconstitutional. A declaration that R.207 of the Registration Rules (Kerala) is illegal, void and unconstitutional in so far as it does not prove for condoning the delay in filing the petition is also sought for. 4. A counter affidavit has been filed in which also it is reiterated that the application filed by the petitioner is not within time. After hearing counsel for the petitioner and the Government Pleader I am of the view that the impugned order is unsustainable. It is only when a final order was passed by the Revenue Board, the petitioner came to know that what is collected is excess. Ext.P12 is the order of the Revenue Board. In the circumstances it would not have been possible for the petitioner to file the application for refund of the excess amount within six months from the date of payment because the order Ext.P2 itself is issued beyond six months. It cannot be held that in such a situation a person like the petitioner has no remedy. The petitioner was compelled to pay the excess amount by the Sub Registrar and the matter was referred to the higher authorities and ultimately the decision came only on 25-3-1988. So six months period can only be reckoned from the date of the decision by the authority concerned on the question whether the payment is in excess. 5. The petitioner was compelled to pay the excess amount by the Sub Registrar and the matter was referred to the higher authorities and ultimately the decision came only on 25-3-1988. So six months period can only be reckoned from the date of the decision by the authority concerned on the question whether the payment is in excess. 5. In this context I also refer to decision rendered by a Single Judge of this court in M'/s. Hindustan Insecticides Ltd. v. The Asst. Collector of Customs and others, 1991 (2) KLT 868 =1991 KLJ (Tax Cases) 821. That was a case where the petitioner therein filed an application after the expiry of the period of six months from the date of payment of duty. S.27 of the Customs Act was pressed into service to hold that the application was time barred. Negativing the contention of the department this court passed an order directing refund of the excess amount within one month. Learned Judge relied on the following passage contained in the decision of the Supreme Court in Shiv Shamke Lal Mills v. State of Haryana, AIR 1980 SC 1037. "Where public bodies under colour of public laws, recover people's money later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of Returning what was wrongly recovered to whom it belongs." I am in respectful agreement with the view expressed by learned Single Judge in the above decision. The principle involved therein would squarely apply to this case also where the fourth respondent compelled the petitioner to make excess payment. I therefore direct the fourth respondent to refund the excess payment made by the petitioner within a period of three months from today. A copy of the order will be communicated to Sub Registrar forthwith. Original petition is disposed of as above.